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In the
v.
v.
____________________
F.3d 744 (7th Cir. 2014) (Frank I). And we vacated a subse-
quent decision, 141 F. Supp. 3d 932 (E.D. Wis. 2015), that
construed Frank I as having resolved in Wisconsin’s favor all
arguments relating to particular voters’ difficulty in obtain-
ing qualifying photo IDs. Frank v. Walker, 819 F.3d 384 (7th
Cir. 2016) (Frank II). Because the right to vote is personal, the
state must accommodate voters who cannot obtain qualify-
ing photo IDs with reasonable effort.
On remand, one district judge ordered Wisconsin to im-
plement an “affidavit option” that excuses the requirement
for photo ID when any voter states that obtaining one re-
quires too much effort. 196 F. Supp. 3d 893 (E.D. Wis. 2016).
That injunction was promptly stayed, 2016 U.S. App. LEXIS
14917 (7th Cir. Aug. 10, 2016), and the court declined to hear
the dispute en banc, though we issued an opinion holding
the state to certain representations it made about enforce-
ment. Frank v. Walker, 835 F.3d 649 (7th Cir. 2016) (en banc)
(Frank III). Around the same time a different district court
decided that many of Wisconsin’s other electoral changes
violate either the Constitution or the Voting Rights Act. One
Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D.
Wis. 2016). Everyone has appealed from almost every aspect
of both district courts’ decisions, and we consolidated the
appeals.
I
One Wisconsin involves more than a dozen of the provi-
sions mentioned above, each contested under a number of
theories. The court’s rationales for ruling in the plaintiffs’
favor on several provisions overlap, and we consolidate our
treatment of them here.
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A
The judge held that several provisions reflect racial dis-
crimination. For example, the court concluded that the
state’s reduction in the number of hours available for in-
person absentee voting (i.e., early voting) would have a dis-
parate impact on black voters in Milwaukee, because those
voters are more likely to use that procedure. What’s more,
the judge found, state legislators knew of that effect. Yet the
state did not have a reason for this change that the judge
found persuasive. Many of its explanations, the judge
thought, boil down to a desire to promote the chances of Re-
publican candidates compared with Democratic candidates.
Because that is a poor if not illegitimate reason, the judge be-
lieved, and produces a racially disparate effect, the judge in-
ferred that racial discrimination is the correct explanation.
There are two problems with this approach. First, it is in-
compatible with the standard for discriminatory intent artic-
ulated in Personnel Administrator of MassachuseDs v. Feeney,
442 U.S. 256 (1979). Second, the belief that a legislature can-
not take politics into account when making decisions that
affect voting was disapproved (after the district court’s deci-
sion) by Rucho v. Common Cause, 139 S. Ct. 2484 (2019). If one
party can make changes that it believes help its candidates,
the other can restore the original rules or revise the new
ones. The process does not include a constitutional ratchet.
Racial discrimination, as a constitutional maper, occurs
only when a public official intends to hold a person’s race
against him. Washington v. Davis, 426 U.S. 229 (1976). See also
Reno v. Bossier Parish School Board, 520 U.S. 471, 481–82
(1997), and Mobile v. Bolden, 446 U.S. 55, 66–67 (1980) (plural-
ity opinion), which apply Davis to voting-rights cases. This is
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B
A second part of the district court’s method was to look
at each provision in isolation when applying what it called
the “Anderson-Burdick balancing analysis” (after Anderson v.
Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504
U.S. 428 (1992)) to claims under the First Amendment (or the
Fourteenth Amendment, a qualifier that we drop from here
on). The judge understood these decisions to allow the judi-
ciary to decide whether any given election law is necessary
because, if not, it is by definition an excessive burden. That
allows a political question—whether a rule is beneficial, on
balance—to be treated as a constitutional question and re-
solved by the courts rather than by legislators.
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C
Several of plaintiffs’ arguments invoke section 2 of the
Voting Rights Act, 52 U.S.C. §10301. The district court ana-
lyzed these arguments using a two-part test that it apributed
to Frank I. See 198 F. Supp. 3d at 951. But the two-part test
that the district court articulated is one adopted by the
Fourth and Sixth Circuits, not by this one. We considered
their approach and registered skepticism, not approval. 768
F.3d at 755. Plaintiffs recognize as much and ask us to over-
rule Frank I, but we stick with that decision.
Section 2(b) provides the standard for interpreting §2(a)’s
“denial or abridgment” result. Section 2(a) is violated only
when, under the totality of the circumstances, the election
system is “not equally open to participation” by members of
a protected class so that group’s members have “less oppor-
tunity than other members of the electorate to participate”.
To the extent that claims related to voter qualification and
election mechanics require a comparative “baseline,” see Re-
no v. Bossier Parish School Board, 528 U.S. 320, 334 (2000), §2(b)
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D
Plaintiffs presented arguments under the Twenty-Sixth
Amendment (which gives the vote to persons 18 and older)
and what they styled “partisan fencing” arguments. Indeed,
plaintiffs contested almost every feature of state law under
almost every line of argument. The district judge thought
that it was not necessary to analyze these arguments sepa-
rately, provision by provision. He treated arguments under
the Twenty-Sixth Amendment (for age) the same as those
under the Fifteenth Amendment (for race), and arguments
about “partisan fencing” as just different ways of presenting
contentions under Anderson and Burdick. We agree with that
assessment, which means that the Twenty-Sixth Amendment
and “partisan fencing” need not be mentioned again.
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II
A
The district court determined that 2013 Wis. Act 146 vio-
lates the Fifteenth Amendment and permanently enjoined
the state from restricting the number of hours municipal
clerks could offer in-person absentee voting. 198 F. Supp. 3d
at 964. Wisconsin has since eliminated its restriction on the
number of hours per day and adjusted the number of days
on which municipalities may offer in-person absentee vot-
ing. 2017 Wis. Act 369 §1K. The district court, which had the
authority to monitor compliance with its injunction, see
Frank III, 835 F.3d at 652, enjoined §1K on January 17, 2019.
The original claim is not moot because both 2013 Wis. Act
146 and 2017 Wis. Act 369 §1K govern the total amount of
allowable time for in-person absentee voting. See Zessar v.
Keith, 536 F.3d 788, 794 (7th Cir. 2008) (discussing recurrence
of the complained-of conduct). The order enjoining §1K
means that we must address the dispute about its predeces-
sor, on which the new injunction depends.
The district judge found that the reduced hours have a
disparate impact on racial minorities. Part I.A of this opinion
explains why we disagree with the conclusion that this ren-
ders the law unconstitutional. Part I.B shows why this provi-
sion cannot be analyzed in isolation. The judge thought that
the change made early voting too hard.
Some of the district court’s analysis of this provision re-
flects the assurance of several municipal clerks that their
offices have the resources to handle additional hours of early
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B
The district court analyzed a variety of provisions under
the Anderson-Burdick framework, which we introduced in
Part I.B.
1. One of these is the one-location rule and the re-
strictions on both the number of hours per day and number
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C
Unexpired student IDs (that expire within two years of
the date of issuance) may be used when voting, but expired
student IDs may not. Wis. Stat. §5.02(6m)(f). The district
court held that this difference violates the Equal Protection
Clause. It concluded that the state lacks a rational basis for
its treatment of students. 198 F. Supp. 3d at 962. Wisconsin
has since added technical colleges to the list of institutions
authorized to issue valid student IDs, 2017 Wis. Act 369 §1,
which the district court enjoined on January 17, 2019.
The district court’s conclusion is hard to accept. The ra-
tional-basis standard is not demanding. Box v. Planned
Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780 (2019).
Drawing a line between current and expired documents
serves a “legitimate governmental purpose”. Heller v. Doe,
509 U.S. 312, 320 (1993). The Transportation Security Admin-
istration draws the same line for the purpose of boarding an
airplane; we do not see why the line is forbidden for voting.
Section 5.02(6m) requires almost all identifying documents—
operators’ licenses, passports, military identification, veter-
an’s identification, and identification issued under §343.50—
to be current, if they are to be used for voting. The period of
validity varies by type of identification. Compare Wis. Stat.
§5.02(6m)(a)(4), with subsection (b). Only identification is-
sued by federally recognized Wisconsin tribes escapes the
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III
Both district courts found fault with the way Wisconsin
implements the holding of Frank II that voting rights are per-
sonal, so that each eligible person must have a path to cast a
vote. Wisconsin’s requirement that persons produce photo
IDs at the polls may block voting by persons who encounter
substantial difficulty in obtaining the documents (such as
birth certificates) that Wisconsin requires for those who do
not already have passports, drivers’ licenses, or other ac-
ceptable credentials.
Wisconsin decided to address this problem with what it
calls the petition process. A person who has trouble assem-
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A
The injunction issued by the Eastern District of Wiscon-
sin permiped any registered voter to declare that reasonable
effort failed to yield acceptable photo ID. The injunction al-
lowed a voter to make his or her choice about how much
effort was too much—some people might deem even one
trip to a governmental bureau excessive—and barred the
state from contesting any person’s conclusion. 196 F. Supp.
3d at 919–20. We stayed that injunction, explaining:
Our most recent decision in this case [Frank II] concluded that
anyone who is eligible to vote in Wisconsin, but cannot obtain a
qualifying photo ID with reasonable effort, is entitled to an ac-
commodation that will permit him or her to cast a ballot. Frank v.
Walker, 819 F.3d 384 (7th Cir. 2016). On remand, the district court
concluded that at least some voters fall in this category, notwith-
standing the most recent revisions to the procedures that Wis-
consin uses to issue photo IDs. But instead of apempting to iden-
tify these voters, or to identify the kinds of situations in which
the state’s procedures fall short, the district court issued an in-
junction that permits any registered voter to declare by affidavit
that reasonable effort would not produce a photo ID—even if the
voter has never tried to secure one, and even if by objective
standards the effort needed would be reasonable (and would
succeed).
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2016 U.S. App. LEXIS 14917 (7th Cir. Aug. 10, 2016). That brief
discussion says all that really needs to be said about this in-
junction.
Permiping voters to file affidavits to obtain voting cre-
dentials isn’t problematic when the legislature authorizes it.
Other states have done so. See, e.g., Idaho Code §34-1114;
Ind. Code §3-11.7-5-2.5(c); La. Rev. Stat. §18:562(A)(2)(b); S.C.
Code §7-13-710(D)(1)(b). But when the legislature uses
different means, courts must ask whether those means are
themselves invalid. One federal judge’s preference for using
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B
The injunction issued by the Western District of Wiscon-
sin requires the state to issue a voting credential promptly
on receipt of materials sufficient to initiate the petition pro-
cess, unless the state has information showing that the po-
tential voter is disqualified. 198 F. Supp. 3d 964–65. We de-
nied a motion to stay that injunction pending appeal. The
state does not disagree with the district court’s fundamental
approach—which for the most part requires the state to do
what it told the judge it is doing—as much as it worries that
an injunction will make it impossible to alter the petition
process as it learns how things work. Persuading a court to
modify an injunction under Fed. R. Civ. P. 60(b)(5) can be
difficult. See United States v. Swift & Co., 286 U.S. 106, 119
(1932); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367
(1992). And that has proven to be so. The state replaced its
temporary rule with a final one, Wis. Admin. Reg. CR 16-040
(Apr. 24, 2017), then adjusted and codified portions of that
approach. 2017 Wis. Act 369. The district court enjoined §92
of Act 369 on January 17, 2019. The 2019 injunction is not
part of this appeal, but we do have to consider the injunction
the district court issued earlier, and on which the 2019 relief
rests.
The constitutional question under Frank II is whether the
state ensures that every eligible voter can get a qualifying
photo ID with reasonable effort. Frank III says that the state’s
process, as the state describes it, is adequate to that end, if reli-
ably implemented. But are those conditions met?
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IV
This is complex litigation, and to keep this opinion man-
ageable we have omiped some lines of argument and abbre-
viated the treatment of others. A few contentions pursued in
the district court have been dropped on appeal. We have
considered all that remain, and we agree with the district
courts’ handling of any issues that we have not mentioned.
We affirm in part, reverse in part, and vacate in part, the
judgments of the Western District. We reverse the district
court’s finding that the adjustments to the number of days
and hours for in-person absentee voting, the state’s dura-
tional residence requirement, and the prohibition on sending
absentee ballots by email or fax violate the Constitution, the
Voting Rights Act, or both. We vacate the district court’s or-
ders related to the one-location rule and the ID petition pro-
cess and remand both, the former with instructions to dis-
miss as moot and the laper for further proceedings. We
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